Dow Chemical Australia

[2018] FWCA 7538

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Dow Chemical Australia

(AG2018/3648)

Dow Chemical (Australia) Pty Ltd Maintenance Workers Enterprise Agreement 2018

Manufacturing and associated industries
Commissioner Cirkovic	MELBOURNE, 12 DECEMBER 2018

Application for approval of the Dow Chemical (Australia) Maintenance Workers Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the Dow Chemical (Australia) Maintenance Workers Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Dow Chemical Australia. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement was approved on 12 December 2018 and, in accordance with s.54, will operate from 19 December 2018. The nominal expiry date of the Agreement is 28 February 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Dow Chemical Australia, applied to the Fair Work Commission for approval of the Dow Chemical (Australia) Maintenance Workers Enterprise Agreement 2018. The respondents included various unions and employee representatives who opposed the application. The dispute centred on whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, particularly in relation to the procedural fairness, coverage, and compliance with the better off overall test.

The primary legal issues the court had to address were whether the agreement was genuinely negotiated, if it covered the correct bargaining unit, and if it satisfied the better off overall test. The court also needed to consider if the procedural fairness was maintained during the negotiation process and if the agreement adhered to the relevant provisions of the Fair Work Act. Additionally, the court examined the fairness of the agreement in terms of the balance between the parties and the rights and obligations it imposed.

In delivering the decision, the commission found that the agreement was genuinely negotiated, covered the correct bargaining unit, and satisfied the better off overall test. The commission concluded that procedural fairness was maintained and that the agreement complied with the statutory requirements. The commission noted that the agreement provided for adequate consultation and representation processes, ensuring that the employees' interests were considered. Furthermore, the commission held that the agreement was fair and balanced, providing appropriate protections and benefits for the employees.

The Fair Work Commission approved the Dow Chemical (Australia) Maintenance Workers Enterprise Agreement 2018, subject to the conditions outlined in the decision. The approval was contingent upon the continued compliance with the statutory requirements and the maintenance of procedural fairness in future negotiations. The commission emphasised the importance of ongoing consultation and good faith bargaining in the context of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established